Sam Muller Speaks at 21st Forum on Global Issues on Promotion of the Rule of Law
21st Forum on Global Issues on Promotion of the Rule of Law – a Cure for all the World’s Troubles? (January 15, 2009, Federal Foreign Office, Berlin)
Mr. Chairman, Excellencies, Ladies and Gentlemen,
There is a joke about a boy in a classroom who gets asked the question by the teacher: “What do you get when you multiply 563 by 5 and divide that by 8?” The boy does not blink an eye and says: “The wrong answer.”
I sometimes wish rule of law advocates would be as brutally honest as the boy in this joke.
What do you get when you bring rule of law?
The list of answers given is long: peace, prosperity, economic growth, respect for human rights, democracy, a cleaner environment, no credit crunches, etc.
My presentation on the topics before this panel could be just as long. As there is limited time to address them, I will not loose myself in lengthy introductions and get straight to business.
In my brief presentation I will focus on the following three points and throw up a few challenges I see relating to each issue, which will hopefully serve to inspire the debate.
1. I will argue that rule of law is a process, not a product;
2. I will argue that there is a need for more integration in the field, BUT: departing from separateness;
3. I will throw up what I call the multilevel challenge.
Mr. Chairman,
In his excellent 2004 book on the rule of law Brian Tamanaha states that “The rule of law (…) stands in the particular state of being the preeminent legitimating political ideal of the world today, without agreement upon precisely what it means.”
He refers to statements by both democratic leaders and dictators (including Robert Mugabe and an Afghan warlord), all stressing the importance of having a society based on the rule of law.
From the dictator’s standpoint: talking about the virtues of the rule of law is easy. It avoids one having to use annoying words like ‘human rights’ and ‘democracy’ and yet it has a positive spin to it.
The democrat can also score points.
I remember a conversation with a Minister of an African country, who seemed to me to be truly committed to the rule of law. He described the following scene to me.
A plane lands at the airport. I go to meet the man that comes out of it. He is from the IMF and has come to bring advice on how to regulate financial markets. A day later another plane lands. Again, I go out to meet him. He is from the High Commissioner on Human Rights and has come to bring advice on bringing national criminal laws in accordance with recognized human rights standards. A third plane lands. Out comes the Minister of Development Aid of a northern European country, who has come with a sack of money to promote women’s and children’s rights. A week later a fourth plane lands. It is a large international NGO with expertise and funds to reform the prison system. A fifth plane lands. It is the EU, with advice on a new electoral law. Many more planes land, bringing many more experts and putting many more people to work. But we still do not have anything that resembles rule of law.
And yet …
All these ‘democrats’ can tell their parliaments, their general assemblies, and their donors that they have done a good thing. They have brought rule of law.
Given this reality, it seems logical to start by being clear as to what we mean when we say rule of law.
Between 2006 and 2007 our institute organised a series of international workshops on the rule of law which culminated in a large conference in the Peace Palace in The Hague in October 2007.
The ‘definition issue’ featured prominently in the exchanges. All participants came out quite frustrated on this topic.
Based on this experience we opted for an ‘analytical framework’ rather than a definition, inspired largely by Brian Tamanaha’s work.
In this model, rule of law is not seen as a ‘thing’ (i.e. when you have a, b and c, you ‘have’ rule of law), but rather as an ongoing conversation, a process. That process takes place within a certain context and it is a process which is part of and connected to other processes.
What we then define is not the thing ‘rule of law’, but rather a starting point for that conversation.
For this we took the so-called ‘thinner’ conception of the rule of law. Such a conception focuses more on formal requirements and less on substantive content. It does not make democracy and the fullness of human rights standards an integral part of the concept.
This does not mean that democracy and human rights protection are categorized as relatively less important. Rather, they are seen as slightly different (though connected) things.
Why? To create conceptual clarity.
The base line at which the ‘conversation’ on rule of law starts then includes: legal certainty, formal equality and the prevention of arbitrary use of power through prospective, general, and stable laws as an instrument of government action and an independent judiciary.
This starting point may not be full human rights and democracy, but it is quite useful in and of itself.
The point here is: without limitations and specificity, rule of law as a concept looses much of its meaning and becomes very difficult to assess, evaluate, use, and promote.
But, there is a problem: when the thinner conception is proposed as a starting point of the rule of law conversation all well-meaning states and international organisations which work on rule of law become uncomfortable.
What would their donors and parliaments say if they went to a country to ‘bring’ rule of law and they started by saying: “let’s leave human rights and democracy aside for a moment?”
As a former UN official myself, I could not dream saying such a thing. The human rights/democracy mantra is holy.
So here we have a concrete challenge.
This brings me to my second point: the need for more integration in the field, but departing from clearer separateness.
The rule of law conversation – more restrictively defined as set out above – must be placed in the wider universe which also contains notions such as democracy, human rights, development, and security, because, of course, the notions are all inter-connected.
In their book Fixing Failed States, Ashraf Ghani and Clare Lockhart evade much of the difficulties which broad rhetoric on rule of law, human rights and democracy can bring to strategy building for failed or failing states.
They take a practical, functional approach which rather appeals to me. Ten functions of the state are identified, of which rule of law is one (and the first). The other 9 are: monopoly of violence, administrative control, sound management of public finances, investment in human capital (education, health), citizenship rights, infrastructure, a market, management of public assets, and effective public borrowing.
In their analysis these functions have what they call a ‘clustering effect’.
One supports the other if they all work well. Alternatively, if one or more of these functions work badly, the whole system is in danger of collapsing.
A note of caution here: there is a debate about ‘ordering’ or ‘sequencing’ in the rule of law literature. I am not fond of such words in the context of our debate because they leave the impression of a Newtonian universe in which linear logic rules. In fact, studying how rule of law can enhance stability and prosperity is more like the quirky world of quantum physics where linear logic does not apply.
By having clearer and more manageable definitions of the functions that a state must perform and the inter-relation between those functions take us forward.
But there is a clear challenge here.
I have noted over the years with some amazement that there are still so very many ‘known unknowns’ and ‘unknown unknowns’ in the field. Many of the questions that are asked in the introductory paper for this Panel are not (yet) easy to answer. The field is fragmented and compartmentalised. There is only time for some examples here.
Academia and practice – especially in continental Europe – are often far apart.
In academia, rule of law is rarely studied as one idea concept, perhaps only by legal philosophers. The legal system is neatly divided into constitutional law, criminal law, private law, etc. Legal scholars are excellent at chopping things into pieces and generally do not think systemically.
Turing to practice, I refer to the story I recalled at the beginning of this talk. I remember being present at a UN ‘Inter-Agency coordination meeting’ of the UN agencies in the DRC. I witnessed UNDP, the High Commissioner on Human Rights, UNICEF, the blue helmets, all talk about aspects of the rule of law, never bringing it into one discussion. I was there as a representative of the International Criminal Court and was not even part of the forum! A Rule of Law Unit was forced upon the UN Secretariat two years ago to coordinate and connect rule of law work within the UN system. It impact has been minimal. The World Bank – one of the larger think tanks on rule of law – is not even part of their universe. And then there are the states: our Minister of Foreign Affairs has taken ‘human rights’ as his big thing. Bureaucratically, this generally means that rule of law projects are not seen as being core priority.
There is need for a more coherent international research agenda. More feedback loops from practice. More research related to challenges in the field. Better inter-disciplinary methodology. Better assessment tools. Measuring tools.
Our institute has done a number of things to deal with these problems:
- We have established the Hague Network on the Rule of Law, which brings together leading international rule of law professionals and academics around a website and an annual meeting. Part of the idea is to build a virtual ‘rule of law meeting point’ where knowledge on rule of law can be exchanged.
- We have established the Hague Journal on the Rule of Law, of which the Chairman is a Editorial Board member;
Others are also contributing:
- The World Justice Forum, which was convened in July last year in Vienna;
- USIP and the INPROL database;
- IDLO Legal Assistance database;
- International Rule of Law Directory on the IBA website;
- The Rule of Law Unit of the UN – with all its limits.
This brings me to my final point: the multilevel challenge.
The rule of law was once a notion only used to describe a system that operated at the national level. Over the past decades, with the development of a wide array of international legal instruments with much relevance for the rule of law, there has been talk of a developing international rule of law. How do these two levels of the rule of law – the international and the national – relate to each other? To what extent does international law provide a normative anchor for rule of law endeavours at the national level? How does the rule of law and the national level relate to the rule of law at the international level? To make things more complex: the making and enforcing of rules is no longer a purely public/governmental affair. Self-regulation within sectors is becoming more and more widespread.
This needs new thinking. Not about the notion of rule of law itself, but about how we can best shape rule of law in the interplay between national and international, private and public.
Mr. Chairman, dear participants,
I guess that on rule of law I am what a commentator I heard on BBC radio referred to as a ‘black optimist’.
Rule of law is hugely important. But it won’t solve all problems. We know a lot about it. But we also have a lot of gaps. There is a lot of momentum. But we must avoid empty rhetoric. We must define sharply. But we must not lose sight of the whole picture.
Thank you for your kind attention.